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TWENTY UNSETTLED MILES 



IN THE 



NORTHEAST BOUNDARY. 



T. C. MENDENHALL 



189 7 



TWENTY UNSETTLED MILES 



IN THE 



NORTHEAST BOUNDARY 



[From tiie Report of the Council of the American Antiquarian Society, 

presented at the annual meeting held in worcester, 

octoisek 21, 18'jc] 



By T. C. MENDENHALL 



Wmtfittx, Pxtf., HI. JF. ^. 

P R ESS OF C II A E L E S II A M I L T X 

311 Main Street. 

18 7. 






4Q66i 

; 






TWENTY UNSETTLED MILES IN THE NORTHEAST 
BOUNDARY. 



For nearly throe hundred years, and almost without cessa- 
tion, there has raged a conflict of jurisdiction over territory 
lying near to what is known as the Northeast Boundary of 
the United States. It has been generally assumed, how- 
ever, that the Webster-Ashburton treaty of 1842, together 
with the Buchanan-Packenham treaty of 1846, settled all 
outstanding differences with Great Britain in the matter of 
boundaries, and few people are aware that there is an 
important failure in these and earlier treaties, to describe 
and define all of the line which extends from ocean to ocean 
and fixes the sovereignty of the adjacent territory. From 
the mouth of the St. Croix River to the ocean outside 
of West Quoddy Head is a distance of about twenty-one 
miles, if the most direct route through Lubec Channel 
be taken. Somewhere, from the middle of the river at its 
mouth to a point in the ocean about midway between the 
island of Campobello and Grand Menan, the boundary be- 
tween Maine and New Brunswick must go, and, inferen- 
tially, for about one mile of this distance it is tolerably well 
fixed. But this is only an inference from the generally 
accepted principle that where two nations exercise jurisdic- 
tion on opposite sides of a narrow channel or stream of 
water, the boundary line must be found somewhere in that 
stream. That this has not been a universally accepted prin- 
ciple, however, will appear later. Throughout the remain- 
ing twenty miles, the territory under the jurisdiction of the 
United States is separated from that under the dominion of 



Great Britain by a long, irregularly shaped estuary, almost 
everywhere more thau a mile in width and over a large part 
of its length opening into Passamaquoddy Bay and other 
extensive arms of the sea. This large body of water, with 
an average depth of twenty-five fathoms and everywhere 
navigable for vessels of the largest size, flows with the alter- 
nations of the tides, the rise and fall of which is here eight- 
een to twenty feet, now north, now south, with a current in 
many places as swift as five and six miles per hour. Noth- 
ing like a distinct channel or "thread of stream 1 ' exists, and 
it can in no way be likened to or regarded as a river. When 
once the mouth of the St. Croix is reached, the boundary 
line is defined by the treaty of 1783 to be the middle of 
that river, up to its source, but literally, as well as figura- 
tively, we are at sea as to its location from that point to the 
open ocean. It is the purpose of this paper to give some 
account of the circumstances which gave rise to such a 
curious omission ; the incidents which led to a diplomatic 
correspondence and convention relating to the matter, in 
1892, between the two governments interested ; and the 
attempt which was made during the two or three years 
following the convention to determine and mark the miss- 
ing boundary. 

The present controversy really had its beginning nearly 
three hundred years ago. Up to the end of the 10th 
century, not much attention had been given by European 
colonists to the northeastern coast of America, although 
it had been visited by Cabot before the beginning of that 
century. The coast was tolerably well known, however, 
and it had been explored to some extent by both Eng- 
lish and French, who were alive to the importance of 
the extensive fishing and other interests which it repre- 
sented. In 1603, the King of France (Henry IV.) made 
the (anions grant to Dc Monts of all the territory in 
America between the fortieth and forty-sixth degrees of 
north latitude, thus furnishing a beautiful example of the 



definition of a most uncertain quantity in a most certain and 
exact manner, an example which later boundary-line mak- 
ers might wisely have followed. The Atlantic coast-line 
covered by this extensive charter, extends from a point 
considerably below Long Island to another point on Cape 
Breton Island and includes all of Nova Scotia. In the 
spring of 1604, De Monts sailed for his new domain, to 
which the name Acadia had been given, carrying with him 
Champlain as pilot. After landing on the southern coast of 
what is now known as Nova Scotia, he sailed around Cape 
Sable to the northward, entered the Bay of Fundy, discov- 
ered and named the St. John River, and afterward entered 
Passamaquoddy Bay, and ascended a large river which 
came into the bay from the north. A little distance above 
its mouth, he found a small island, near the middle of the 
stream, which at that point is nearly a mile and a half wide. 
As this island appeared easy of defence against the natives, 
he determined to make a settlement there, and proceeded 
to the erection of buildings, fortifications, etc. A few miles 
above the island, the river was divided into two branches 
nearly at right angles to the main stream, and the whole so 
resembled a cross, that the name "St. Croix'' was given 
to the new settlement, and the same name came, afterward, 
to be applied to the river. The subsequent unhappy fate 
of this first attempt to plant the civilization of Europe upon 
the northern coast of America is so well known that further 
reference is unnecessary. This most interesting spot is 
now partly occupied by the United States Government as a 
lighthouse reservation, about one-third of the island hav- 
ing been purchased for that purpose. The St. Croix River 
lighthouse, carrying a fixed white and 30-scc. white flash- 
light of the fifth order, now stands where in 1605 stood 
the stone house and palisade of the dying Frenchmen, 
who found in disease a worse enemy than the aborigines. 
The area of the whole is only a few acres, and it has 
apparently wasted away a good deal since the French 



6 

settlement, relics of which are occasionally found even at 
this day. The island has borne various names, that first 
given having loner since attached itself to the river. On 
modern Government charts, it is known as Dochet's Island, 
derived, doubtless, from Doucet's, one of its early names, 
but it is, perhaps, more generally known as Neutral Island. 
The significance of its discovery and settlement as affecting 
the question in hand, will appear later. 

Very shortly after the grant of the French King in 1603, 
King James of England issued a charter to all of the terri- 
tory in America extending from the Atlantic to the Pacific 
Ocean, included between the thirty-fourth and forty-sixth 
degrees of north latitude, covering and including the pre- 
vious grant of the French King, and thus setting fairly in 
motion the game of giving away lands without considera- 
tion of the rights or even claims of others, in which the 
crowned heads of Europe delighted to indulge for a century 
or more. Colonization was attempted, and now one power, 
now another, was in the ascendant. Occasional treaties 
in Europe arrested petty warfare on this side, and out of it 
all came a general recognition of the St. Croix River as the 
boundary between the French possessions and those of the 
English. It is impossible and would be improper to go 
into these historical details, most of which are so generally 
known. It is only important to note that the province 
known as Nova Scotia by the one nation, as Acadia by the 
other, after various vicissitudes became the property of the 
English, and that it was assumed to be separated from the 
province of Massachusetts Bay by the river St. Croix. 

While the latter province remained a colony, loyal 
to the King, and the former a dominion of the Crown, 
there was naturally no dispute over boundary lines. In 
the provisional peace treaty of 1782, between the United 
States and Great Britain, and in the definitive treaty of 
peace in L783, it is declared that in order that "all dis- 
pute- which might arise in future, on the subject of the 



boundaries of the said United States may be prevented, it 
is hereby agreed and declared that the following are and 
shall be their boundaries," and in this embodiment of 
peaceful intent is to be found the origin of international 
controversies which lasted more than a half a century, and 
which were often provocative of much bitterness on both 
sides. The phrase in which reference is made to the line 
under consideration is as follows: "East by a line to be 
drawn along the middle of the river St. Croix, from its 
mouth in the Bay of Fundy to its source." During the 
last days of the Revolutionary War many who had been 
loyal to the King during its continuance fled from the 
Colonies to Nova Scotia, and naturally they were not much 
in favor among those who had risked all in the founding of 
a new republic. It was believed by them that the loyalists 
were encroaching on the territory rightfully belonging to 
the province of Massachusetts, and even before the defini- 
tive treaty of peace had been proclaimed, Congress had 
been appealed to to drive them away from their settlement 
and claim what was assumed to be the property of the 
United States of America. There at once developed what 
proved to be one of the most interesting controversies in 
the history of boundary lines. It was discovered that 
although the St. Croix River had long served as a bound- 
ary, "between nations and individuals," its actual identity 
was unknown. The treaty declared that the line of demarc- 
ation between the two countries should be " drawn alono- 
the middle of the river St. Croix from its mouth in the Bay 
of Fundy," but it was found that there were several rivers 
debouching into this bay and that several of them had 
been, at one time or another, known as the St. Croix. 
In accordance with time-honored diplomatic practice, the 
English were for taking the most westerly of all these, and 
the Americans contended with much vigor and no small 
amount of justice that it was the most easterly. The St. 
John, a large river emptying into the Bay of Fundy, had 



been so long and so well known that it was out of the ques- 
tion. There remained three considerable streams, Avhich, 
beginning with that farthest east, were known as the 
Magaguadavic, or popularly at the present day, the "Mag- 
adavy," the Passamaquoddy and the Cobscook, all pouring 
their waters into the Passamaquoddy Bay. 

In the Grenville-Jay Treaty of 1794, the settling of this 
dispute is provided for in an agreement to appoint three 
commissioners, one each to be named by the respective 
governments and the third to be selected and agreed upon 
by these two, whose duty it was to "decide what river is 
the river St. Croix intended by the treaty," and to declare 
the same, with particulars as to the latitude and longitude 
of its mouth and its source, and the decision of these 
commissioners was to be final. In a supplementary treaty 
of 1798, this commission was relieved from the duty of 
determining latitude and longitude, having, for some reason 
or other, found difficulties in the same, or, possibly, recog- 
nizing the absurdity of defining a boundary in two distinct 
and independent ways. It was not until 1798 that the 
commissioners made their report. As is usual, indeed, 
almost universal in diplomatic affairs, it represented a com- 
promise. There seems to be little doubt that the river 
which was called St. Croix at the time of the negotiation of 
the treaty of peace in 1783 was really the most easterly 
river or the " Magadavy," this being the testimony of the 
commissioners, Adams, Jay and Franklin. But at the 
same time it cannot be denied that the stream finally 
accepted as the St. Croix was the real river of that name, 
referred to in the traditions and treaties of two centuries, 
and the discovery of the remains of the French settlement 
on Dochet's Island quieted all doubt in the matter. Eng- 
land gained a decided advantage by the not-unheard-of 
proceeding of adhering to the letter of the treaty rather 
than to its spirit. 

But the report of the commission of 1798 fell far short 



N 





of terminating the boundary-line controversy. The iden- 
tity of the St. Croix River was fixed and its mouth 
and source determined, but from the beginning of the 
line in the middle of the river there were still twenty 
miles before the open ocean was reached. Along this 
stretch of almost land-locked water were numerous islands, 
several of them large and valuable, and on some of them 
important settlements had already been made. The Com- 
missioners of 1794 were urged to continue the line to the 
sea, thus settling the sovereignty of these islands and end- 
ing the dispute. They declined to do so, however, on 
account of a lack of jurisdiction, as they believed, and it 
was not then thought that these subordinate problems 
would be difficult of solution. As a matter of fact, Great 
Britain claimed dominion over all of these islands and 
exercised authority over most of them, except Moose 
Island, upon which was the vigorous American town of 
Eastport. A treaty was actually arranged in 1803 between 
Lord Hawkesbury and Rufus King in which the question 
of the extension of the boundary line to the open sea was 
agreed upon and in a most curious way. It was declared 
that the boundary line should proceed from the mouth of the 
St. Croix and through the middle of the channel between 
Deer Island and Moose Island (which was thus held by the 
United States) and Campobello Island on the west and 
south round the eastern part of Campobello to the Bay of 
Fundy. This would apparently give the island of Campo- 
bello to the United States ; but it was especially declared 
that all islands to the north and east of said boundary, lo- 
gether with the island of Campobello, should be a part of 
the Province of New Brunswick. The curious feature of 
this treaty, providing that an island actually included on 
the American side of the boundary line should remain in 
the possession of Great Britain, resulted from a provision 
of the treaty of 1783, which declared that all islands here- 
tofore under the jurisdiction of Nova Scotia should remain 



10 

the property of Great Britain. It is also an admission of 
the fact that the natural extension of the boundary line is 
around the eastern end of Campobello, as described above; 
and while this treaty was never ratified, it is of great 
significance as proving the admission on the part of the 
English, that the natural boundary would include the island 
of Campobello in American territory. 

During the war of 1812 matters remained in statu quo, 
and Moose Island (Eastport) continued to be regarded as 
American, although Great Britain had yielded nothing of 
her claims. Finally, just as peace had been declared, an 
armed English force appeared before the town and com- 
pelled its surrender. This was undoubtedly to gain that 
possession, which is nine of the ten points, before the meet- 
ing of the Commission at Ghent ; and in the discussion 
which afterward took place, the British Commissioners 
claimed absolute and complete ownership of Moose Island 
and others near by. To this the Americans would not 
yield ; but they finally gave way to the extent of allowing 
continued possession until commissioners, to be appointed 
under the treaty, could investigate and decide the question. 
Thus the boundary line was thrown into the hands of 
another commission, which was again unfortunate in not be- 
ing clothed with sufficient power to definitely fix it. Indeed, 
the importance and desirability of considering the extension 
of the boundary line to the sea does not seem to have been 
realized, the commissioners being restricted in their duties 
to the determination of the sovereignty of the several islands 
in Passamaquoddy Bay. The report of this commission 
was made in November, 1817. As this decision has a most 
important bearing on the matter under consideration, it 
will be well to quote its exact language. The Commission- 
ers agreed "that Moose Island. Dudley Island and Freder- 
ick Island, in the Bay of Passamaquoddy, which is part of 
the Bay of Fundv, do and each of them docs belong to the 
United States of America ; and we have also decided, and 



11 

do decide, that all other islands and each and every one of 
them, in the said Bay of Passamaquoddy, which is a part 
of the Bay of Fundy, and the Island of Grand Menan in the 
said Bay of Fundy, do belong to his said Britannic Maj- 
esty, in conformity with the true intent of said second 
article of said treaty of one thousand seven hundred and 
eighty-three." A very superficial examination of this 
decision reveals the possibility of a decided advantage to 
Great Britain in consequence of its wording, an advantage 
doubtless foreseen and foresought by the more shrewd and 
accomplished diplomatists by whom that nation was repre- 
sented in this instance, as in almost every other contro- 
versy with this country. Here is a group of scores of 
islands, lying in an inland sea, separating the two countries. 
It is true that the sovereignty of one or two of the most 
important is apparently deteiynined by the treaty of 1783, 
but on this the arguments were almost equally strong on 
both sides. In any event it would have been easy, and 
infinitely better to have drawn a line through the Bay, 
from the mouth of the river to the open sea, and to have 
declared that all islands on one side of that line should 
belong to Great Britain and all on the other side to the 
United States. Had this been done, much subsequent 
dispute would have been avoided. With much ingenuity, 
however (as it seems to me), the American Commission 
was induced to accept three islands, definitely named and 
pointed out, as their share, while the Englishmen, with 
characteristic modesty, contented themselves with every- 
thing left. Of the sovereignty of Moose, Dudley and 
Frederick Islands, there was hardly room for discussion, 
notwithstanding the three or four years' occupancy of the 
town of Eastport by British troops after the War of 1812. 
Our being worsted in the matter, as we unquestionably 
were, is to be attributed to the general indifference of the 
great majority of our people to the future value of outly- 
ing territory, the resources of which have not yet been 



12 

explored. This unfortunate indifference is quite as general 
today as it was a century ago, and is in marked contrast 
with the policy of our English ancestors. 

It is important to note that this partition of the islands 
in Passamaquoddy Bay, unfair as it unquestionably was, 
gave no definition of the boundary line from the mouth of 
the St. Croix to the sea, except inferentially. In the 
absence of description it must be inferred that the bound- 
ary is to be drawn so as to leave on one side all territory 
admitted to be American and on the other all admitted to 
be British. For a distance of about a half a mile the island 
of Campobello lies so close to the American shore that a 
channel, known as Lubec Channel, not more than a thous- 
and feet in width, separates the two countries, and the 
thread, or deepest axis of this channel might well define 
the boundary. For the remaining score of miles, however, 
as has already been explained, the estuary is too wide, its 
depth too great and too uniform to afford any physical 
delimitation, except that based on equal division of water 
areas. 

This ill-defined, or rather undefined boundary line has 
so remained for nearly eighty years. It is true that gov- 
ernment chart-makers, both English and American, have 
often indicated by dotted lines their own ideas as to its 
whereabouts, but they have not been consistent, even with 
themselves, except as to making Lubec Channel a part of 
it, and they have had no authority except that of tradition. 
There has been no small amount of commercial activity 
among the settlements on both sides of the Bay, and a con- 
siderable proportion of the population have been, at one 
time or another, engaged in fishing. The customs laws of 
both countries, and especially the well-established fisheries 
regulations of the Canadians, and the activity of their fish- 
cries police, have led to various assumptions as to the loca- 
tion of the boundary by one of the interested parties and to 
more or less tacit admission by the other. It happens that 



13 

the greater part of the best fishing-grounds in the immedi- 
ate vicinity of the town of Eastport is distinctly within 
Canadian waters, so that most of the trespassing has been 
done by the Americans. This has resulted in a great 
development of Canadian police activity, which necessarily 
implies assumption as to the existence and whereabouts of 
the boundary. The continued readiness to claim that 
American fishermen were trespassers, accompanied occa- 
sionally by actual arrest and confiscation, naturally led to 
a gradual pushing of the assumed boundary towards the 
American side ; and there is no doubt that during the past 
twenty-five years, the people on that side have acquiesced 
in an interpretation of the original treaty which was decid- 
edly unfavorable to their own interests. On the other 
hand, from Lubec Channel to the sea, through Quoddy 
Roads, a condition of things just the reverse of this seems 
to have existed. Here certain fishing-rights and localities 
have been stubbornly contended for and successfully held 
by Americans, although the territory involved, is, to say 
the least, doubtful. In the matter of importation of duti- 
able foreign goods into the United States, there existed 
for many years an easy liberality among the people whose 
occupation at one time was largely that of smuggling, for 
which the locality offers so many facilities. It is plain that 
this condition of things would give rise to no great anxiety 
about the uncertainty of the boundary line, although in one 
or two instances the activity (no doubt thought pernicious) 
of the Customs officers resulted in disputes as to where the 
jurisdiction of one country ended and that of the other 
began ; and in at least one notable case, to be referred to 
at some length later, this question was adjudicated upon 
by the United States courts. 

The question was not seriously considered by the two 
governments, however, from the time of the treaty of Ghent 
to the year 1892. It is not an uncommon belief that this 
part of the boundary line was considered in the famous 



14 

Webster- Ashburton Treaty of 1842 ; and many people 
have unjustly held Webster responsible for the continued 
possession by Great Britain of the island of Campobello, 
which, by every rule of physiographic delimitation, ought to 
belong to the United States. But, as already recited, the 
sovereignty of this island was settled in 1817, and practi- 
cally so in the original treaty of 1783. The Webster- 
Ashburton Treaty was apparently intended to settle the 
last outstanding differences between Great Britain and the 
United States in the matter of boundary lines, but disputes 
relating to them seem difficult to quiet. The treaty of 
1842 carried the line only as far as the Rocky Mountains, 
and another in 1840 was necessary for its extension to the 
Pacific. Examining both of these in the light of today, 
there can be no doubt of the fact that the United States 
was seriously at fault in yielding, as she did, her rightful 
claims at both ends of the great trans-continental line. 
Enormous advantages would be hers today, if she had not 
so yielded ; and her only excuse is that at the time of 
negotiation the territory involved did not seem of material 
value, at least when compared with her millions of acres 
then undeveloped. 

In all of these controversies nothing was said of the little 
stretch of undefined boundary in Passamaquoddy Bay, and 
it is quite probable that those who had to do with such 
matters were quite unaware of its existence. 

On July 16th, 1891, the Canadian cruiser, Dream, doing 
police duty in those waters, seized seven fishing-boats, 
owned and operated by citizens of the United States, while 
they were engaged in fishing at a point near what is known 
as Cochran's Ledge, in Passamaquoddy Bay, nearly oppo- 
site the eity of Eastport, Maine. It was claimed by 
Canadian authorities that the crews of these boats were 
engaged in taking fish in Canadian waters. On the other 
hand, the owners of the boats seized contended that they 
wif well within the jurisdiction of the United States at 



15 

the time of the seizure, and there was much interest in the 
controversy which followed. The matter was referred 
to the Department of State, where it became evident 
that future conflict of authority and jurisdiction could be 
avoided only by such a marking of the boundary line 
as would make the division of the waters of the Bay 
unmistakable. 

Accordingly, in Article II. of the Convention between the 
United States and Great Britain, concluded at Washington, 
on July 22, 1892, it is agreed that each nation shall appoint 
a Commissioner, and that the two shall " determine upon 
a method of more accurately marking the boundary line 
between the two countries in the waters of Passamaquoddy 
Bay in front of and adjacent to Eastport in the State of 
Maine, and to place buoys and fix such other boundary 
marks as they may deem to be necessary." The phrasing 
of this Convention furnishes in itself, a most excellent ex- 
ample of how a thing ought not to be done. There is no 
doubt that a large majority of the boundary-line disputes 
the world over, are due to the use of faulty descriptions 
involving hasty and ill-considered phraseology. We are 
particularly liable to this sort of thing in the United States, 
by reason of the fact that most of our diplomatic affairs are 
too often conducted by men of little experience and no 
training, and who are unaccustomed to close criticism of the 
possible interpretation of phrases and sentences relating to 
geographical subjects. A treaty of this kind is usually 
satisfactory to both parties when entered into, and it is 
only at a later period, when it must be interpreted, that one 
or the other of them is likely to find that it is capable of a 
rendering and an application very different from what had 
been thought of at the time. Innumerable examples of this 
looseness of language might be given if necessary, but it is 
important to call attention to the inherent weakness of the 
document now under consideration. The first phrase, re- 
quiring the commissioners "to determine upon a method of 



16 

more accurately marking the boundary line" implies that it 
was already marked in some unsatisfactory manner, and it 
implies still further, that such a boundary line exists, 
neither of which assumptions is correct. As a consequence 
of this erroneous hypothesis, the description of the part 
of the line to be marked, namely, that in front of and 
adjacent to Eastport, is vague and inadequate, and, 
indeed, there is nowhere a hint of a recognition of the 
real facts. 

Under this convention, Hon. W. F. King, of Ottawa, 
Canada, was appointed commissioner on the part of Great 
Britain, and the writer of this paper represented the United 
States. 

The commissioners were immediately confronted with 
the fact that they were expected to mark a boundary line 
which really did not exist and never had existed : but by a 
liberal interpretation of that part of the convention in which 
it was agreed that they were "to place buoys or fix such 
other boundary marks as they may determine to be neces- 
sary," they found a basis on which to proceed to the con- 
sideration of the question. Evidently the just and fail- 
principle according to which the boundary might be drawn, 
was that which, as far as was practicable, left equal water- 
areas on both sides. There was no other solution of the 
problem clearly indicated by the physics of the estuary or 
the topography of the shores. Furthermore, there is a 
precedent for adopting this principle, in the treaty of 1846, 
in which the extension of the boundary from the point of 
intersection of the forty-ninth parallel of north latitude with 
the middle" of the channel between Vancouver Island and 
the Continent, to the Pacific Ocean, is along the middle of 
the Strait of Fuca. This was agreed to by both sides ; and 
also, that the boundary line should consist, in the main, of 
straight lines, because of the impossibility of marking a 
curved line on the water, or indicating it clearly by shore 
signals ; that the number of these straight lines should be 



17 

as small as possible, consistent with an approximately equal 
division of the water area. In view of the great desirability 
of fixing the line for the whole distance, from the mouth of 
the St. Croix River to West Quoddy Head, the commis- 
sioners tentatively agreed to so interpret the words "adja- 
cent to Eastport," as to include the entire twenty miles, 
thus hoping to definitely settle a controversy of a hundred 
years' standing. Proceeding on these principles, the whole 
line was actually laid down on a large scale chart of the 
region at a meeting of the commission, in Washington, in 
March, 1893, with the exception of a distance of a little 
over half a mile, extending north from a point in the middle 
of Lubcc Channel. The omission of this part in the Wash- 
ington agreement was due to the existence of a small island 
about a quarter of a mile from the entrance to the channel, 
now known as "Pope's Folly," but early in the century 
known as "Green" Island and also as "Mark" Island. The 
sovereignty of this island has been almost from the begin- 
ning a matter of local dispute. It contains barely an acre of 
ground, and except for possible military uses, it has practi- 
cally no value. Its location is such, however, as to form a 
stumbling block in the way of drawing a boundary line, 
which, if laid flown with a reasonable regard to the princi- 
ples enunciated above, would certainly throw it on the side 
of the United States, while a line so drawn as to include it 
in Canadian waters would be unscientific and unnatural. 
It was agreed to postpone further consideration of this 
question until the meeting of the commissioners in the field 
for the purpose of actually establishing the line, which 
meeting occurred in July, 1893. 

Nearly two months were occupied in the surveys neces- 
sary to the establishment of the ranges agreed upon and in 
the erection of the shore signals. It was agreed that the 
line should be marked by buoys at the turning-points, but 
as the strong tidal currents which there prevail promised to 
make it difficult, if not impossible, to hold these in their 



18 

places it was determined to mark each straight segment of 
the boundary by prominent and lasting range-signals so that 
it could be followed without regard to the buoys, and cross- 
ranocs were also established by means of which the latter 
could be easily replaced if carried away. Permanent natu- 
ral objects were in a few instances used as range signals, 
but for the most part they were stone monuments, conical 
in form, solidly built, from five feet to fifteen feet in height, 
and painted white whenever their visibility at long range 
was thus improved. At the close of the work, first-class 
can-buoys were placed at the principal turning-points, al- 
though with little hope of their remaining in place. As a 
matter of fact, it was found impossible to keep in place more 
than three of the six or seven put down, but, fortunately, 
these are at the most important points in the line. As 
already stated, the commissioners had failed to agree, in 
Washington, as to the direction of the line around Pope's 
Folly Island, and on further investigation of the facts they 
were not drawn together on this point. As the work in 
the field progressed, other important differences developed 
which finally prevented the full accomplishment of the 
work for which the commission had been appointed. A 
brief discussion of these differences will properly form a 
part of this paper. 

As to jurisdiction over Pope's Folly Island, the claim 
of the British Commissioner is, at first blush, the strongest. 
It rests upon the report of the commissioners appointed 
under the treaty of Ghent lor the partition of the islands 
in Passamaquoddy Bay. It will be remembered that in 
this report three, only, of these islands were declared to 
belong to the United States, and Pope's Folly was not 
one of them. As all others were to be the property of 
Great Britain it would seem that the sovereignty of this 
small island was hers beyond doubt. There is, however, 
very distinctly, another aspect of the question. In the 
first place, it is highly probable the Commissioners under 



19 

the treaty of Ghent restricted their consideration and 
action to those islands the domain of which was and had 
been actually in dispute. The language of the treaty dis- 
tinctly implies this and the language of the report closely 
follows that of the treaty. It is true that reference is had 
to "the several islands in the Bay of Passamaquoddy, 
which is part of the Bay of Fundy," etc., but it is further 
said that "said islands are claimed as belonging to His 
Britannic Majesty, as having been at the time of and previ- 
ous to the aforesaid treaty of one thousand seven hundred 
and eighty-three, within the limits of the Province of Nova 
Scotia"; for by that treaty all of the important islands of 
the group would have come to the United States, had not 
exception been made of all then or previously belonging to 
this province. Obviously, then, the partition commission- 
ers would consider only those for which such a claim could 
be set up. There is also good reason to believe that the 
island called Pope's Folly may not have been considered 
by the commission, on account of its trifling importance. 
It is a significant fact that there are many other small 
islands in the bay, some of them much larger and more 
important than this, of which no mention was made by the 
commission, yet Great Britain has never claimed or even 
suggested that they were rightfully British territory. 
Their sovereignty was probably not even thought of by the 
commission. In short, a literal interpretation of their 
report is not admissible and it has never been so claimed. 
Its phraseology is another example of hasty diplomatic 
composition, into the acceptance of which the Americans 
may have been led by their more skilful opponents. 

At the time this question was under consideration, the 
region was sparsely settled, many of the islands having no 
inhabitants at all ; and the whole dispute was thought, 
at least on our side, to be a matter of comparative little 
importance. It was natural, therefore, that in selecting 
those islands which were to belong to the United States, 



20 

only the most important would be thought of, it being 
understood that geographical relationship should determine 
jurisdiction over many small islands not named and doubt- 
less not thought worthy of enumerating at that time. But 
if it could be shown that the island was at the time of the 
treaty of 1783, or had been previously, a dependency of 
the Province of Nova Scotia, the claim of the British 
Commissioner would be good. On this point I believe the 
evidence is entirely with us. It goes to show that so far 
as there has been any private ownership of the island it has 
been vested in American citizens. At the time of my 
investigation, in the summer of 1893, I had the pleasure 
of a lon<"" interview with the owner of this little island, 
Mr. Winslow Bates, who was born in the year 1808, in 
which year Pope's Folly was deeded to his father by one 
Zeba Pope. A copy of this deed I obtained from the 
records at Machias, but I was unable to find any trace of 
an earlier proprietor than Mr. Pope. It was deeded to 
Mr. Bates under the name of "Little Green Island"; but 
there is evidence that Pope had erected upon it a house and 
a wharf, the uselessncss of which had suggested to his 
neighbors the name by which it is now known. Bates, the 
father of my informant, continued in peaceful possession of 
the island until the British forces came into control at 
Eastport at the close of the war of 1812. In August, 
1814, David Owen, of Campobello, posted a placard 
proclamation in the town of Eastport, announcing his 
assertion of ownership of this island. It was hardly 
posted, however, before it was torn down by an indignant 
American patriot, probably Elias Bates himself, for it is 
now in the possession of Mr. Winslow Bales. It shows 
the holes made by the tacks by which it was originally 
held and is a curious and valuable relic of those trouble- 
some days in the history of Eastport. Backed by the 
British army, Owen took forcible possession of the island 
and removed the buildings to Campobello. The American 



21 

owner, Bates, procured a writ for the arrest of Owen, 
claiming damages to the extent of $2,000. The writ 
was never served, as Owen was careful never to come 
within the jurisdiction of the Court, after the withdrawal 
of the British troops. After this it was in the continued 
occupancy of Americans ; Bates pastured sheep on it, and 
Canadians Avho had attempted to erect a weir at the east 
end of the island were prevented from doing so by a 
warning from Winslow Bates, and did not further assert 
their claim. The island was incorporated into the town 
of Eastport, and when that town was divided it was 
included in that part known as Lubec. As long ago as 
1823, the sovereignty of the island was adjudicated upon 
by the American courts, on the occasion of the confisca- 
tion near its shore, of "sundry barrels of rum" by alert 
Customs officers. Judge Ware made an elaborate decision, 
in which the whole case was admirably presented. 1 

His construction of the Report of the Commission was 
" that it assigns to each party a title according to its 
possession, as it was held in 1812," and he finds that the 
island is within the domain of the United States. 

If further evidence were necessary, it could be found in 
the early cartography of this region. 

In a map entitled "A Map of Campobello and other 
Islands in the Province of New Brunswick, the property of 
Will Owen, Esq., sole surviving grantee, etc., drawn by 
Jolm Wilkinson, Agt., to Win. Owen Esq., Campobello, 
30th September, 1830," there is drawn a broken straight 
line extending from the southern end of Deer Island to the 
eastern point of Lubec Neck, which line is designated 
" Filium Aquae" which must be interpreted as meaning 
water line or boundary. Pope's Folly is on the American 
side of this line. Moreover, it is an historical fact that 
English and American vessels formerly exchanged cargoes 



i Ware's Reports, 1823. 



22 

on such a line, not far from Eastport, which was assumed 
to be the boundary line. A British Admiral's chart of that 
region, dated 1848, shows a dotted line intended to repre- 
sent the boundary, which runs to the eastward of Pope's 
Folly. Moreover, the principal ship channel is between 
the island and Campobello. 

In the light of all of this evidence, and more of a similar 
character, it seems unreasonable to suppose that the Com- 
mission under the treaty of 1814 ever intended this island 
to be included in the general declaration "all other islands 
shall belong to His Britannic Majesty." According to all 
recognized geographical principles, to traditional ownership 
and continued possession, and to early and authoritative 
maps and charts, it is a part of the State of Maine. To 
deflect the boundary line so as to bring the island under 
British control, would distort it to an unreasonable degree, 
and would result in greatly increased difficulty and con- 
fusion in the administration of customs laws and regula- 
tions. Against all of this the British Commission could 
only set up a literal interpretation of the report of the 
Commissioners under the treaty of Ghent, to which the 
representative of the United States felt compelled to refuse 
assent. 

Another difference of opinion, almost trivial in magnitude 
but suirorestivc in character, arose as soon as the range- 

Do l ~' 

marks defining the line as agreed upon in Washington had 
been actually located on the ground. Nearly opposite the 
city of Eastport there is rather a sharp change in the direc- 
tion of this line, amounting to about 57° 25'. It was dis- 
covered (hat there was included in the angle at this point, 
on the side towards the United States, the better pari of a 
shoal known as Cochran's Ledge, a locality much fre- 
quented by fishermen, and, indeed, the very spot on which 
th«' American fishermen had been arrested by the Canadian 
police in 1891. The result of this discovery was that the 
commissioner representing Canadian interests declared his 



23 

unwillingness to agree to the line as laid down at this 
point, and desired to introduce a new short line cutting 
off this angle so as to throw the ledge into Canadian 
waters. 

In some measure growing out of this controversy was a 
third, relating to the line from Lubec Channel to the sea. 
For about half of this distance the channel now and for 
many years in use is a dredged channel, created and main- 
tained at the expense of the United States. Through this 
it was proposed and agreed at Washington to run the 
boundary line. Previous to the making of this there was 
a more or less complete and satisfactory natural chan- 
nel, through which all vessels passed. It was crooked, 
and was, for the most part, much nearer the Canadian 
shore than the present channel. It has now largely filled 
up and disappeared ; the principal current having been 
diverted into the new channel. In running the bound- 
ary line through the latter a much more even and, in 
the judgment of the American Commissioner, a much 
more just division of the water area was secured, but 
it was discovered to have the locally serious disadvantage 
of throwing to the Canadian side certain fishing weirs 
which had been maintained practically in the same spot for 
many years and which were mostly owned and operated by 
American citizens, resident in the town of Lubec. It is 
true, as suggested in an earlier part of this paper, that 
their continued occupation had been stoutly resisted by the 
Canadians, and serious conflict had once or twice arisen. 
There was, of course, a certain amount of reason in de- 
manding a line following the old channel, which undoubtedly 
was the only channel, when the original treaty was made. 
Adherence to the well-founded principle of equal division 
of water areas, however, was thought to be wiser and more 
just by the representative of the United States, even if it 
required the surrender of a few comparatively valueless 
fishing-privileges, the right to which was of very doubtful 



24 

origin. Those who thought they would suffer in this way 
made strong appeals to the Department of State and a 
claim for the old channel was afterwards embodied in the 
propositions made by the United States. 

The differences between the Commissioners regarding the 
three points above referred to were the only differences that 
were at all serious, and these, it is believed, might have 
been removed had they enjoyed absolute freedom and full 
power of adjustment. Thus restricted, the Commissioners 
could not and did not come to an agreement. At their 
meeting on December 30th, 1894, the American Commis- 
sioner submitted three propositions, to any one of which 
he was willing to subscribe. The first proposed the entire 
line as originally laid down in Washington, with an addi- 
tional section throwing Pope's Folly Island into the United 
States ; the second suggested a literal interpretation of the 
Convention of July 22nd, 1892, restricting the marking to 
three lines "in front of and adjacent to Eastport"; the third 
recommended an agreement on portions of the line, with 
alternative propositions as to Pope's Folly and Lubec 
Channel, to be afterwards determined by such methods as 
the two governments might agree upon. None of these 
was acceptable to the British Commissioner and in turn he 
submitted five propositions, none of which was satisfactory 
to the representative of the United States. They all 
involved non-action as to Pope's Folly Island, but included 
action favorable to Canadian interests below Lubec. 

At the last meeting, in April, 1895, it was finally agreed 
to disagree, and the preparation of a joint report, setting 
forth the principal lines of agreement and disagreement 
was undertaken. It was at last resolved, however, to 
report separately, and a full and detailed report of all 
operations was made by the American Commissioner and 
submitted to the Department of State. 

What was actually accomplished l>v this joint Com- 
mission was the laying out in VV r ashin<rton of a rational 




"est quoooy 

HEAO 



Sketch Map of Passamaquoddy Bay showing proposed Boundary with alternate lines 
below and above Lubec. 



25 

boundary line, extending over the entire twenty miles of 
undetermined boundary, and the actual erection on the 
ground of range-signals and monuments indicating this line. 
These still remain and, as a matter of fact, are quite gen- 
erally accepted as authoritative in the immediate vicinity, 
thus making it every day easier for a future convention to 
fix definitely the direction of the boundary and thus quiet a 
dispute which has already continued a century longer than 
was necessary. 



LIBRARY OF CONGRESS 



011 895 688 6 % 



HOLLINGER 
pH 8.5 

MILL RUN F3-1543 



